On 12 February 2025, the Home Office released its updated guidance on right to work checks in the UK, which can be accessed here. In this article, whilst exploring these updates including the impact of the new eVisa scheme, we also provide a recap on right to work checking practices, including why you need to carry them out, how you perform them, and the punishments for failing to follow protocol.
Who is this article relevant to?
This article is relevant to employers and those with recruitment responsibilities within their organisation. All employers in the UK have a responsibility to prevent illegal working. They can do this by carrying out right to work checks on all prospective employees, and in some cases, on existing employees, in accordance with the Home Office guidance. Doing this will allow employers to establish a statutory excuse against liability for a civil penalty for employing someone who does not have the right to work in the UK (an illegal worker).
If an individual’s right to work is continuous, employers do not have to repeat a right to work check on them. However, if their right to work is time-limited, employers should conduct a follow up check before it expires.
How to carry out right to work checks:
There are three types of right to work checks that an employer can carry out before hiring someone:
- A manual check
- A check using Digital Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP), or
- A Home Office online right to work check.
Which one you carry out is dependent on the individual’s nationality, preference, and the type of right to work they hold.
Manual Checks
Manual checks can be carried out on any prospective employee in theory. However, individuals who apply for a visa are no longer given a physical document to demonstrate their status (such as a biometric residence card or permit) – instead, they are given an eVisa which is an electronic record of their immigration status. Manual checks cannot be carried out on people with eVisas and online checks must be done instead.
Please note that while biometric residence cards and permits stopped being produced in October 2024, there will be many still in circulation. It has not been possible to rely on biometric residence cards or permits in a manual right to work check since April 2022. If a prospective employee presents a biometric residence permit or card as proof of right to work, you must do an online check to obtain a statutory excuse. See more on this below.
To conduct a proper manual check, employers must complete three steps before employing someone:
- Obtain the original documents from List A (for those with continuous right to work in the UK) or List B (for those with time limited right to work) of the acceptable documents at Annex A of the Home Office guidance on right to work checks.
- Check that the documents provided are genuine and the person presenting them is the prospective employee, is the rightful holder of those documents, and is allowed to do the type of work in question.
- Keep a record of every document that has been checked, for the duration of the person’s employment and then for a further two years once they stop working for the employer. The file must then be securely destroyed.
When checking the validity of any documents provided by a prospective employee, employers must do this in the presence of that person, either in person, or via video link, provided they have access to physical possession of the documents. This stage is known as the ‘imposter check’.
The new right to work guidance has also provided some clarity around the types of documents that can be accepted under Lists A and B for a manual check. The new guidance confirms that a “clipped” passport (i.e. where a corner has been cut off) is a cancelled document, therefore cannot be used in a right to work check. Non-clipped British or Irish passports that have expired remain acceptable. Also, long or short form birth certificates can be accepted, provided the person also provides official evidence of their name and national insurance number issued either by a government agency or former employer.
The guidance confirms that current passports that are endorsed to show that the holder is exempt from immigration control, has right of abode, is allowed to stay indefinitely or has no time limit on their stay, are still acceptable List A documents. This could include someone who has an ‘indefinite leave to remain’ stamp in their passport. Strictly, people with people with such stamps have been encouraged to create a UKVI account so they can prove their immigration status online. However, for now, passport stamps can still be accepted. It remains to be seen how the Home Office will approach this going forward and whether there will be a cut off point for everyone with immigration status to create an online account.
Checks using IDVT via an IDSP
This type of check is carried out on British and Irish citizens who hold a valid passport (including Irish passport cards).
It is an employer’s responsibility to obtain evidence of the IDVT check from the IDSP. An employer will only have a statutory excuse if they reasonably believe that the IDSP has carried out their checks in accordance with the Home Office guidance. The employer must still check that the IDSP output is consistent with the person presenting themselves for work, i.e. the employer must still conduct the imposter check to get a statutory excuse.
A detailed guide on how to complete a check using an IDSP is contained in Annex C of the Home Office right to work check guidance. The results must also be kept on file for the duration of employment and two years after it ends. The file must then be securely destroyed.
Home Office online right to work check
An online right to work check is applicable for non-British/Irish citizens. However, it is not possible to carry out this type of check in all circumstances, as not all individuals will have an immigration status that can be checked online. In this case, employers should conduct a manual or IDSP check instead.
To conduct a proper online right to work check on those who have immigration status that can be checked online, employers must follow three steps:
- Check the individual’s right to work details, by accessing the online right to work checking service, entering the share code provided to you by the prospective employee (that is valid for 90 calendar days), and then entering the individual’s date of birth.
- Check that the photograph on the online right to work is of the prospective employee applying for the relevant role (the imposter check). This can be done in person or by video call.
- Retain any evidence of the check, which should be the ‘profile page’ confirming the individual’s right to work. Employers should retain this for the duration of the person’s employment, and for two years after they cease to work for them. The file must then be securely destroyed.
One of the most significant updates to the recent Home Office guidance relates to the further developments in the eVisa rollout. As mentioned above, those who apply for immigration status are now provided with an eVisa as proof of their immigration status in the UK, as opposed to physical documents.
As part of the eVisa rollout in late 2024, Biometric Residence Permits (BRPs) expired on 31 December 2024. Those with BRPs that expired on this date have been encouraged to create a UKVI account to access their eVisa, so they can access the online right to work checking service and be able to prove their right to work to employers.
However, the Home Office is aware that many BRP holders have not yet created a UKVI account even though these cards have all now expired. Until 31 March 2025, the Home Office has enabled individuals with ongoing permission to stay in the UK to use their expired BRP cards to access the online right to work checking service, but this date is subject to review, so employers should be aware of this date changing. To avoid confusion, although the BRP expiry date was 31 December 2024, this was only the expiry date for the physical card itself, and was not the expiry date of someone’s immigration status, which may extend beyond that date. In light of this, employers should have carried out an online right to work check on those employees with a BRP with an expiry date of 31 December, so they are aware of the expiry of their true visa expiry date, which might extend beyond this.
Further, if your BRP expires on or after 31 December 2024 and you still have permission to stay in the UK, you should continue to carry your BRP with you when you travel to the UK before or on 1 June 2025.
Also, the Home Office has set out that from 12 February 2025 those who are granted permission to enter the UK for more than six months who are issued a vignette sticker in their passport (valid for 90 calendar days) to enable them to travel to the UK, must create a UKVI account to access their eVisa within 10 calendar days of their arrival or before their vignette expires (whichever is later).
If the prospective employee needs to start working for an employer before accessing their eVisa, they will be able to prove their right to work by using the vignette sticker in their passport, but employers must carry out a manual right to work check based on this vignette which must be valid at the time of the check, and they will have to carry out a follow up online check once this vignette expires. This could include a check using the Employer Checking Service if the individual is having trouble accessing their eVisa.
When these employees travel to the UK, they are encouraged to travel with their online share code (as well as obtaining an ETA if relevant – see our article for information on the ETA scheme, here).
Follow up right to work checks:
An employer must only carry out follow up checks on an employee if their right to work is time limited, i.e. if they have a visa with an expiry date. Employers must carry out a follow up check on them on or before the date their permission expires, if they intend on continuing working for the employer after their permission expires. Employers will therefore retain their statutory excuse against liability for a civil penalty, provided they carried out an initial check before hiring that individual, and the required follow up checks, in accordance with the Home Office guidance.
It is imperative that employers provide an employee with a reasonable opportunity to prove that they continue to have the right to work in the UK. If an employee is unable to prove their right to work, employers can contact the Employer Checking Service (ECS) to confirm this. Where employers contact the ECS, they will establish a statutory excuse if they are issued with a Positive Verification Notice (PVN) confirming that the employee is allowed to carry out the type of work in question. This statutory excuse will expire six months from the date of the PVN, and employers must carry out a follow up check before the expiration date. In some cases an online check can be done rather than using the ECS service, with similar results.
Penalties for non-compliance:
If an employer carries out a right to work check on a prospective/existing employee in accordance with the Home Office guidance on right to work checks, and upon employing that individual, they turn out to be an illegal worker, the employer will have a statutory excuse (i.e. a defence) against liability for a civil penalty.
However, if they fail to do this, employers can be subject to one or more of the following penalties:
- A civil penalty of up to £60,000 per illegal worker (£45,000 for a first offence)
- A closure of their business and a compliance order issued by the court
- Disqualification of directors (this has been the case for many directors, particularly at the end of 2024, as part of Operation Tornado. Please our recent article on this subject area, which can be accessed here)
- Revocation of sponsor licences and bans on reapplying
- Seizure of earnings, and
- In more serious cases, a criminal conviction of up to five years imprisonment and/or an unlimited fine.
The individual can face up to six months imprisonment and/or an unlimited fine and will likely be deported from the UK and face a re-entry ban.
How can we help?
To avoid significant penalties being placed on employers, it is paramount that they take steps to eliminate the risks of recruiting an illegal worker. These include keeping their right to work checking mechanisms up to date, conducting necessary follow-up checks, and following the ever-changing Home Office guidance on right to work checks.
If you need help with performing your right to work checks, or if you have any queries regarding how this guidance relates to you, please get in touch.
